Mary C. Geddes
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
DISTRICT OF ALASKA
550 W. 7th Avenue, Suite 1600
Anchorage, Alaska 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES OF AMERICA, ) Case No. A97-148 (AHB)(HRH)
)
Plaintiff, ) MOTION TO SUPPRESS
) AND MOTION FOR A
vs. ) FRANKS HEARING
)
SHAWN PHILLIPS, )
)
Defendant. )
____________________________________)
A period of excludable delay under 18 U.S.C. § 3161(h) may
occur as the result of the filing/granting/denying of this motion.
COMES NOW THE DEFENDANT, SHAWN MICHAEL PHILLIPS, by and through his attorney Mary C. Geddes, Assistant Federal Defender, and moves this court for an order suppressing all evidence from the search of a suitcase seized from Mr. Russell on April 30, 1997 and searched on May 1, 1997.
This motion is based upon the Fourth Amendment of the United States Constitution, United States v. Place, 462 U.S. 696 (1983), Franks v. Delaware, 438 U.S. 154 (1978), the attached supporting Memorandum and Affidavit, the files and records of this case, and any further information presented to the Court in connection with this motion.
DATED this ____ day of July, 2000.
Respectfully submitted,
FEDERAL PUBLIC DEFENDER
DISTRICT OF ALASKA
________________________________
Mary C. Geddes
Assistant Federal Defender
CERTIFICATE OF SERVICE
The undersigned certifies that on February
______, 1998, a copy of the foregoing was
hand delivered to:
James N. Barkeley, Esq.
Assistant U.S. Attorney
United States Courthouse
222 W. 7th Ave. #9 Room 253
Anchorage, Alaska
____________________________________
Susan H. Abbott
Mary C. Geddes
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
DISTRICT OF ALASKA
550 W. 7th Avenue, Suite 1600
Anchorage, Alaska 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES OF AMERICA, ) Case No. A97-148 (AHB)(HRH)
)
Plaintiff, ) MEMORANDUM IN SUPPORT OF
) DEFENDANT'S MOTION TO
vs. ) SUPPRESS AND FOR A
) FRANKS HEARINGu
SHAWN PHILLIPS, )
)
Defendant. )
____________________________________)
INTRODUCTION
On April 30, 1997, at the Anchorage International Airport, an Airport Police officer contrived to confront an arriving passenger, Shawn Michael Phillips. Their contact was tape-recorded. The officer, Inv. Tower, was suspicious -- based on information he had received - that Phillips might be involved in drug trafficking. Tower accompanied Mr. Phillips while he retrieved his checked duffle bag. When Phillips did not consent to a search of the bag, Tower then seized the bag for the purposes of presenting it to a scent detection dog. The bag itself was handed over to employees of two different airlines and sent to Fairbanks so it could be that it could be presented to a State Trooper scent detection canine in that city. Two hours after the bag was detained, the dog 'alerted' to the bag. The bag was sent back to Anchorage more than three hours after the initial seizure, and the bag was later searched pursuant to a state court search warrant. The bag allegedly contained methamphetamine and a small amount of marijuana.
For the reasons that will be provided below, the seizure and subsequent search of the bag were illegal. Therefore, the fruits of the seizure must be suppressed. The resolution of this motion should be wholly dispositive of the federal criminal case which has been filed against Mr. Phillips.
This motion was earlier litigated in state court, and was decided in Mr. Phillips' favor, following an evidentiary hearing. The hearing has been transcribed.
STATEMENT OF FACTS
The following account is based upon that information disclosed to the undersigned attorney by the United States Attorney and the Anchorage District Attorney's office which initially prosecuted this case. The facts should be uncontested.
On April 25, 1997, an informant contacted Sgt. D'Angelo of the Alaska State Troopers with a "tip" concerning Shawn Michael Phillips. The trooper made notes of this conversation. The trooper made notes which indicated that he was speaking to "Danny." The Assistant United States attorney has provided the identity of the informant, Danny Smith. Mr. Phillips was Danny Smith's soon-to-be "ex-son-in-law." Smith told the trooper that Phillips was now in San Diego, having just traveled there "three or four days ago"; that "the only reason to go pick up drugs" [sic]; that Phillips might have a traffic warrant from December 1996 as he "took four dividers down"; that he has stolen firearms; that he deals in "stolen darts"; that he had "ripped guys off for drugs." The trooper also made the note of "DV class." D'Angelo may have also been speaking to the defendant's estranged wife, who was residing in Whittier with her parents, as D'Angelo's notes also reference the "Whittier Fire Department," the wife's workplace.
On the following day, on April 26, 1997, some law enforcement official - presumably Sgt. D'Angelo - ran a 'records check' in the NCIC database for Shawn Michael Phillips, apparently following up on the information he had received from the informant. Notably, the NCIC also showed that the defendant's place of birth was San Diego, California. Phillips had no arrests or warrants for any drug-related offense. He did have three Alaska Driving Without a License convictions going back to 1989, and one 1988 assault charge which had not been prosecuted.
It showed the following AST warrants for unpaid traffic tickets. (1)
TO818611 4/14/95 FTA OC EQUIP MISUSE NON DRI BAIL AMT 30.00
TO818612 4/14/95 FTA OC DR LIC CARRY DISPLAY BAIL AMT 30.00
Mr. Phillips also had bench warrants from the Wasilla Police Department for two traffic citations on December 12, 1996, i.e., for failures to respond to citations for an equipment violation and the registration of a vehicle. The total amount of bail for those Wasilla tickets was $70.00.
The NCIC printout also provided some significant information regarding the adversary relationship between Phillips and the daughter of the informant. The printout reflected that a domestic restraining order had been in effect since January 8, 1997, and as recently as April 15 and April 16, there had been some court activity modifying the terms of child custody and visitation. The NCIC reflected Phillips had been served by the Anchorage Police Department with notice of the modification on April 16. The NCIC also noted that a state court hearing was scheduled for May 14, 1997.
Two days after the NCIC report was printed, on April 28, 1997 Inv. Larry Tower discussed Phillips and his anticipated return to Alaska ("source: Tower's field notes") with his boss, Sgt. Walter Kenney, an Alaska state trooper and head of the Airport Interdiction Unit. Investigator Tower is an airport police officer who is specifically detailed to the State Troopers as a "Specially Commissioned Officer" of the Airport Interdiction Unit. The function of the Airport Interdiction Unit is to intercept drugs being brought through the Anchorage International Airport and other ports of entry.
On April 29, 1997, Sgt. D'Angelo learned that Shawn Phillips would be traveling the next day from San Diego to Anchorage. The police thereafter obtained an itinerary from Reno Airlines. Tower and Kenny learned that Phillips planned to leave San Diego the next day, on April 30, 1997, at 1:10 p.m. to commence the nine hour-plus trip back to Alaska. Phillips would take three connecting nonstop flights: San Diego to San Jose; San Jose to Seattle; and Seattle to Anchorage. Towers' field notes for April 30, 1997, reflect that, at 6:30 p.m.(ADT), he made a call and confirmed that Phillips was on his scheduled Reno Air flight. The non-stop flight to Anchorage had left Seattle at 5:55 p.m. AST, thirty-five minutes before Tower's call. The flight was due to arrive in Anchorage at 9:20 p.m. (ADT), that same evening. Apparently no earlier calls had been made by the Troopers to the airlines confirming Phillips' presence on the first two flights. (2)
At 7:00 p.m. Inv. Tower made a call about "Customs' dog. [sic]" At 7:30 p.m., Tower made a page and then a telephone call to Fairbanks, to Alaska State Trooper Sheets - a handler for canine "Conan" - to give him a "heads' up." There was no effort made to have Conan fly to Anchorage, even though similar arrangements have been made in other cases. (Evidentiary Hearing.)
At 9:24 p.m., the flight arrived. Inv. Tower, in plain clothes, was there to meet the flight. Phillips, however, was one of the last passengers to deplane. Tower saw him at 9:30 p.m. Tower followed Phillips as he walked through the terminal. According to Tower's report, prepared on May 30, 1997, Phillips walked very rapidly through the terminal, passing other passengers that deplaned prior to him, and seemed to be looking at other people around him. He stopped at the Cheers Bar where he looked briefly inside. He then went to a telephone and made a phone call. Phillips then went downstairs to the baggage claim area, but the baggage had not yet arrived. He went outside and met and talked to a man who was sitting on a motorcycle outside the baggage claim area. It appeared to Tower that Phillips handed the individual something.
At 9:40 p.m., Inv. Tower approached the two men and identified himself. (Note: this entire contact was taped and has been transcribed. ) Tower asked for identification. Tracy Coffman, the man on the motorcycle, did not have his driver's license on him but gave Tower his name, address and other identifiers. Mr. Phillips did have his identification and his tickets and gave them to Tower. In response to questioning, Coffman said he had given Phillips a cigarette. In response to questioning, Mr. Phillips said that he had gone to San Diego to visit an aunt, and had been there about a week. Tower asked if he could perform a pat-search; the men agreed to the procedure, and Tower indicated he 'appreciated the cooperation.'
Tower then told Phillips that he had gotten some information that he(Phillips) was bringing back narcotics to Alaska, and he just needed to have a conversation with him "about his luggage," inside the terminal. Tower asked if Phillips knew of anyone that "may be mad at" him, to which Phillips responded "his wife.". When Tower said he was required to follow up on all leads, Phillips said, "no problem." In his report, Tower noted that, "When talking with me, Phillips had a somewhat calm presence and had maintained eye contact with me."
After learning that Coffman was there to pick up Phillips, Towers told Coffman that he was going to go inside the terminal with Phillips.
"Like I said, ah, I'll go in with him when he gets his bags and I'll talk to him for a couple of minutes and we'll let you know whether he is coming right back out, okay?...Just like to talk to him for a few minutes when he gets his bag . . . people pick up bags. Well, we'll be right back out and let you know. "
When Phillips went back inside the terminal, Towers went with him. Phillips told Tower that he had one checked bag, and he described its appearance for the officer.
Towers noted that Phillips' demeanor was calm and that he made good eye contact throughout their discussion.
When the baggage arrived, Tower accompanied him to the conveyer belt. Phillips identified his bag and he picked it up. When Phillips retrieved his bag, Towers then asked his permission to check the bag for narcotics, as he did not have a search warrant.
TOWERS: Is that it? (Pause) What I'd like to do there, SHAWN, is that ah I'd like to ask your permission to check the bag there for any narcotic. Would that be all right with you? I don't have a search warrant, but I'd like to . . .
PHILLIPS: Then no.
TOWER: Pardon?
PHILLIPS Then no.
TOWER: Then no? Okay, well I'm going to advise you, I'm going to seize the bag. I'm gong to have a scent detect- a scent detection canine go over the bag to see if there's any narcotics, since we did receive information that you're carrying. So, I'm going to seize the bag. If you like, I'll give you a receipt for the bag. There's going to be a dog scent detection dog . . . hang onto that. [ (3)] And also, I need to advise you that you have some warrants. I need you to turn around, I'm placing you under arrest. You have five warrants. (Pause) Put your hands back to back, like that. Okay. Ah, we'll walk down to the airport police office. We need to get that bag, ah, you want to watch him for a minute? You got the tape on you, and I'll tape that up. Tape going off at . . . watch him there for me. (End of tape)
Based upon listening to the taped contact, the baggage was seized ten minutes after the contact began, at 9:50 p.m. (4)
A receipt was subsequently written for the bag, a copy of which was provided in discovery. The receipt itself shows only identification information for Mr. Phillips, i.e. name, address and phone number. The receipt -- which has a place for an owner's acknowledgment - is unsigned by Mr. Phillips. Inv. Tower testified that he would have stuck the receipt in Mr. Phillips' pocket as Mr. Phillips was handcuffed.
Tower brought Phillips in handcuffs to the Airport Police office within the terminal. Phillips was transported more than an hour after his arrest to the state court magistrate. Arrested at 9:50 p.m., Phillips finally arrived at the Sixth Avenue Jail at 11:30 p.m. Although Tower claimed he had five arrest warrants for Phillips, Phillips was arrested on only two, with a total bail of $60. Phillips' bail was posted and he was released. (Source: counsel's call to DOC.)
Meanwhile, Tower arranged for the bag to be flown to Fairbanks International Airport, the home of a scent detection canine handled by Trooper Sheets. Inv. Tower first contacted Reno Airlines to check on the status of Flight 693, the flight the defendant had disembarked from and the next flight to Fairbanks. The Reno Airlines agent contacted the aircraft by radio and was advised that Flight 693 had not yet left and that, if the bag were brought to the aircraft, the Reno Airlines personnel might be able to take it to Fairbanks. The bag was given by Tower to a Reno Airlines employee, who in turn gave it to one of its ramp employees for the purpose of getting the bag on the flight.
At 10:16 p.m., after Tower arrived at the Airport Safety Office, he learned that a Reno airlines agent had called and said that, as they were unable to get the bag on Flight 693, they had taken the bag to Delta Airlines and given the bag to Delta employees. (5) A Delta flight was scheduled to leave for Fairbanks at 10:55 p.m. Delta Flight No. 1618 was scheduled to arrive in Fairbanks at 11:50 p.m. Inv. Tower then called Trooper Sheets at 10:25 p.m. to tell him the expected time of arrival.
At 12:05 a.m. on May 1, 1997, Trooper Sheets reportedly called and advised Inv. Tower that at 11:50 p.m. (Flight 1618's scheduled time of arrival) his scent detection canine, "Conan," had indicated to the presence of illegal narcotics when exposed to the defendant's blue duffle bag. Trooper Sheets had then placed the bag in a box and given it to an agent for Delta Airlines, who reportedly placed the box on Flight 2140 bound for Anchorage. The box containing the defendant's bag arrived in Anchorage at 1:00 a.m., according to Tower.
In Anchorage, Inv. Tower met with a Delta Airlines agent and picked up the box containing the defendant's bag. The box was then placed in a storage facility pending application for a search warrant.
At 3:00 a.m., Invs. Kenny and Tower applied for and received state court search warrant 3AN-S97-1049SW, authorizing the search of the defendant's blue duffle bag and its contents for the presence of illegal narcotics.
At 3:45 p.m., the search warrant was executed. Inside the defendant's blue duffle bag, Invs. Kenny and Tower reportedly found a ziplock bag containing 129 grams of powder (which tested positive for methamphetamine) and a baggie which appeared to contain a small amount of marijuana.
If the bag was taken at 9:50 p.m., the elapsed time between the detention of the defendant's blue duffle in Anchorage and the reported time of the canine's "alert" in Fairbanks was two hours (2:00), thirty minutes in excess of the time already determined to be "unreasonable" in United States v. Place, 462 U.S. 696, 700-701 (1983).
The elapsed time between the detention of the bag and its return to Inv. Tower was three hours and twenty-five minutes.
If Tower had made any prior arrangements with either Reno Airlines or Alaska Airlines, the bag would have been in Fairbanks by 11:00 p.m. (Source: Tower's report to DA, 9/11/97.)
The elapsed time between the reported time of the "alert" in Fairbanks and the application for a warrant was an additional 3:17.
At the state court evidentiary hearing on this same motion, in which the state called Inv. Tower and Trooper Kenney to testify, Inv. Tower stated:
Sgt. Kenney testified that:
ISSUES PRESENTED
I. The initial investigatory detention of the bag was not premised upon reasonable grounds or suspicion because Tower's information was not sufficiently reliable or timely.
II. The baggage was illegally seized under the authority of United States v. Place, because: the length of detention was unreasonable; the police did not act diligently to minimize the intrusion; and Mr. Phillips was not provided with information about the whereabouts of his property or how he could act to immediately retrieve it.
III. The search warrant lacked probable cause for the following reasons.
A. The search warrant was tainted by the illegal seizure.
C.. The search warrant was defective because the affiant intentionally or recklessly omitted material.
Therefore, a Franks hearing must be held.
IV. The dog's "indication" was not reliable evidence supporting probable cause. A Franks hearing is also requested with relationship to this evidence.
BY A REASONABLE SUSPICION.
The troopers' initial detention of Phillips' bag was premised upon information received from Phillips' ex-father-in-law. The information he provided did not reflect any current knowledge of Phillips' activities, only his whereabouts, and the speculation that the only reason Phillips would have gone to San Diego for a week was to pick up drugs. The troopers had other information, which they chose not to factor into the decision to detain his bag. Phillips was born in San Diego, and so obviously had some familial connection to that location. And, significantly, Phillips was currently engaged in a court battle over visitation rights with the daughter of the informant.
Phillips' contact with the trooper should have undercut any suspicions as to his activities. He properly identified himself. He and his ride agreed to a pat search. He truthfully described where he had been and the length of his trip. He indicated his trip had been to visit family in San Diego, an aunt who resided there. When asked who might want to make trouble for him by contacting the police, he answered "his wife." At all times, he acted calmly and made good eye contact with the police officer. Phillips had no criminal history that indicated involvement with drugs or substance abuse.
In context, it was unreasonable to even temporarily detain Phillips' bag. Compare United States v. Place, 462 U.S. 696, 700-701, 103 S.Ct. 2037(1983), recognizing that property may be briefly detained upon reasonable suspicion, analogous to the standard approved under Terry v. Ohio, 392 U.S. 1 (1968).
II. THE BAG WAS ILLEGALLY SEIZED.
This case involved the planned seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging its exposure to a narcotics detection dog.
The Fourth Amendment protects "the right of the people to be secure in their . . . papers and affects, against unreasonable searches and seizures." It tests the validity of a government intrusion into an individual's legitimate expectations of privacy based on what society is prepared to recognize as reasonable. The Supreme Court has held that one of these expectations includes a privacy interest in one's luggage. See United States v. Chadwick, 433 U.S. 1, 7 (1977).
Normally, a seizure of personal property is per se unreasonable within the meaning of the Fourth Amendment unless is it accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. United States v. Place, 462 U.S. 696, 700-701 , 103 S.Ct. 2037(1983).
In Place, the Supreme Court recognized a limited exception that permits property to be detained upon reasonable suspicion, a type of detention analogous to the brief investigative stop of the person approved under Terry v. Ohio, 392 U.S. 1 (1968). It cited a number of factors used to determine if the holding of a piece of luggage is a detention or a seizure. Primary among these are the length of time the luggage is held; the diligence with which the police act; and whether they give the traveler sufficient information about the length of the delay and how he can recover the luggage. Place, 462 U.S. at 709-710, 103 S.Ct..at 2642; see also United States v. Erwin, 803 F.2d 1505, 1509 (1989). Resolution of this case is governed by the decision in Place, which held that the warrantless seizure of an airline passenger's baggage which exceeded 90 minutes in duration amounted to a full-scale seizure requiring probable cause.
In Place, the defendant's suspicious behavior at Miami International Airport had attracted the attention of the police. Defendant initially consented to a search of his bags, but since his flight was about to depart, the officers decided not to search. Upon the defendant's arrival at La Guardia Airport in New York, the defendant was approached again by police, who asked for, and received, identification. Defendant then refused a request to search his luggage, whereupon police took the luggage over to Kennedy Airport where it was subjected to a canine "sniff test." At this point, 90 minutes had elapsed since the seizure of the suitcase. The police then obtained a warrant, opened the suitcase, and found drugs.
The length of detention was the primary focus. However, the supreme court noted:
in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New York agents knew the time of Place's scheduled arrival at La Guardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests. Thus, although we decline to adopt any outside time limitation for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case. [Cites omitted.]
Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangement would be made for return of the luggage if the investigation dispelled the suspicion.
Id. At 2645-46.
.
Virtually all of the factors addressed in Place are present in this case. The detention exceeded 90 minutes. Mr. Phillips was not informed where his bag was being sent, how long it would be gone, or how he could get the bag returned. Police knew of his arrival in advance, and should have arranged for the dog-sniff either in Anchorage or made other arrangements to minimize the intrusion.
The government is expected to reiterate the state's argument that the length of time involved in this detention was reasonable. As the state court found, this court should find that the Troopers had ample notice and opportunity to minimize the detention of the bag, but did not do so. Therefore, the detention of the bag was not reasonable for brief investigatory purposes under the Fourth Amendment; and it amounted to an illegal seizure.
III. THE SEARCH WARRANT LACKED PROBABLE CAUSE.
A. The Warrant Was Tainted Due to the Illegal Seizure.
After the bag was seized, Inv. Tower sought a search warrant for it in state court before a magistrate. The search warrant application was solely by affidavit. The search warrant affidavit gave the circumstances of the suitcase's seizure and its transportation to Fairbanks and asserted that the seizure occurred on probable cause.
In Murray v. United States, 487 U.S. 533 (1987), the Supreme Court addressed the question of what happens when agents obtain information through some violation of the Fourth Amendment and then seek a search warrant, based in part on what they have seen there. In deciding it, the court drew on the "independent source" doctrine, which validates searches made even though Fourth Amendment violations have occurred, so long as the search was predicated on independent information. See Segura v. United States, 468 U.S. 796, 813-814 (1984).
In Murray, the agents had surveilled defendants and observed them to have contact with a warehouse, into which they broke and entered and found a number of burlap-wrapped bales. They then departed and sought a warrant to search the warehouse, leaving out the fact of the breaking-in and the bales seen during it. Id. at 535-536. The court observed in passing that it would "be difficult for a lawful, later seizure to be independent of an earlier, tainted one where the seized goods are kept in the police's possession." Id. at 542. However, that was not the situation in Murray, and the Supreme Court was not sufficiently certain whether the district court had made sufficient findings on the
[u]ltimate question whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.
Murray v. United States, 487 U.S. at 542 (emphasis added). Cases after Murray also have applied this analysis, often remanding to the district court for additional findings on this question. See, e.g., United States v. Holzman, 871 F.2d 1496, 1514 (9th Cir. 1989); United States v. Bosse, 898 F.2d 113, 116 (9th Cir. 1990).
This Court should answer the question as the Supreme Court indicated it should on the facts presented here: no independent source eliminates the taint here, where the search warrant is and can be sought only and precisely because an illegal seizure kept the object to be searched in the police's custody. The illegal seizure has a direct bearing on the agent's decision to seek the warrant: without it, he would not and could not have sought it. The illegal seizure of the suitcase here very directly leads to a finding that the suitcase was illegally searched, and the evidence found in it must be suppressed.
B. The search warrant was lacking in probable cause and was overbroad.
Inv. Tower's affidavit/application for a state court search warrant set out the following:
1. Sgt. D'Angelo received this information from a cooperating individual he determined to be reliable and had first hand knowledge in the drug trafficking activities of Phillips."
Based on the foregoing, the affiant requested a warrant to search for "cocaine, heroin, methamphetamine, marijuana or any combination thereof, US currency, forfeitable firearms and documents relating to travel status, financial statements, telephone numbers and documents related to drug trafficking." The court issued the warrant for such a search.
The problems with the foregoing application were
C. The search warrant was defective because the affiant intentionally or recklessly omitted material.
1. The informant.
The affidavit included the statements:
On 4/29/97, Sgt. D'Angelo provided information to the Airport Detail, that Shawn M. Phillips was currently in San Diego picking up methamphetamine for transport back to Alaska.
1. Sgt. D'Angelo received this information from a cooperating individual he determined to be reliable and had first hand knowledge in the drug trafficking activities of Phillips.
Inv. Tower painted the picture that Sgt. D'Angelo's informant had current, first -hand, reliable information that Mr. Phillips was bringing back methamphetamine from San Diego on his flight on April 29, 1997, and that such informant was "reliable." The conclusion that the informant was believed reliable was meaningless; that determination is left to a magistrate. However, with respect to the suggestion that the informant had specific and "first-hand knowledge" of Phillips' activities in San Diego in April 1997, he led the magistrate astray. Inv. Tower claimed to have received "reports" from Sgt. D'Angelo concerning this information. The only "reports" provided in discovery in either the state or federal arena are field notes of Sgt. D'Angelo's conversations. They identify the informant as Mr. Phillips' ex-father-in-law and they contain only the speculation that Mr. Phillips would be bringing back drugs from San Diego.
These statements can be described either as a material false statement or a material omission. Either way, it created the wrong impression. Also undisclosed was the informant's adversarial relationship to Mr. Phillips and his potential bias such that he would be motivated to make a false report.
2. The Observations of the Defendant at the Airport.
Also omitted from the affidavit were Tower's observations of the defendant which were wholly consistent with innocent conduct: that he identified himself with proper identification, that he gave accurate information about his travel and provided a plausible reason for his presence in San Diego; that his demeanor when confronted by the officer was calm; that he identified his bag to the officer; and that he answered all of the officer's queries. Most significant among the omissions of the affiant were the defendant's statements that the only person likely to try and get him in trouble right now was his wife, whom the affiant knew was the daughter of the informant. In sum, the affiant painted a picture of elusiveness on Mr. Phillips' part even though he was cooperative up until the point when Inv. Tower asked his permission to search his bag, and gave him the option not to agree.
3. The Dog Sniff.
The affidavit also created the misimpression that the affiant had personal knowledge of the canine's "positive indication" that drugs were in the bag. He did not. The confusing attachment A compounded this impression.
4. Why a Franks Hearing Should Be Held.
If the Place issue is not dispositive, a hearing should be held under the authority of Franks v. Delaware,438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.E.2d 667 (1978) for the determination of whether material information was either recklessly omitted or intentionally withheld. See, e.g., United States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997). "A warrant that violates Franks is not subject to the good-faith exception to the exclusionary rule provided in United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984)." See e.g. United States v. Colkey, 899 F.2d 297, 300 (4th Cir.1990).
Under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), a search warrant is void, and the fruits of a search are inadmissible, if the defendant establishes by a preponderance of the evidence that (1) a witness in the warrant proceedings made a false statement knowingly or intentionally, or with reckless disregard for the truth, and (2) with the false statement set aside, the remaining evidence is insufficient to support probable cause. This rule has been extended to allow challenges on the basis of deliberate or reckless omissions. United States v. Reivich, 793 F.2d 957, 960-61 (8th Cir.1986). In the case of an omission, the defendant must establish that the evidence, as supplemented by the improperly omitted information, would not support probable cause. Id. at 961. United States v. Barr, 32 F.3d 1320, 1322 (8th Cir.), rehearing denied (1994). See also United States v. Ippolito, 774 F.2d 1482, 1485, 1486-7 n.1 (9th Cir. 1985)(citing Franks v. Delaware, 438 U.S. at 156, 98 S.Ct. at 2676). Whether judicial deception is due to material false statements or material omissions is of no consequence in determining whether Fourth Amendment violations have occurred. See Liston v. County of Riverside, 120 F.3d 965, (9th Cir. 1997).
The Supreme Court in Franks noted that the Warrant Clause of the Fourth Amendment takes the affiant's good faith as its premise. 438 U.S. at 164, 98 S.Ct. at 2680. Moreover, "[b]ecause it is the magistrate who must determine independently whether there is probable cause, . . . it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." Id. at 165, 98 S.Ct. at 2681. The use of deliberately falsified information is not the only way by which police officers can mislead a magistrate when making a probable cause determination. Alternatively, by reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning. See id. at 168, 98 S.Ct. at 2682. United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985).
Under Franks, 438 U.S. at 156, 98 S.Ct. at 2676, evidence seized pursuant to a search warrant must be suppressed if the defendant can prove by a preponderance of the evidence that the affidavit contains intentionally or recklessly false statements, and that the affidavit cannot support a finding of probable cause without the allegedly false information. United States v. Tham, 960 F.2d 1391, 1395 (9th Cir.1991). This rule has been extended to include deliberate or reckless omissions. Id. United States v. Furlong, 844 F.Supp. 624, 628 (D. Mont., 1994).
If, after the limited evidentiary hearing, the court concludes upon a preponderance of evidence that the magistrate or judge in issuing the warrant was misled, then suppression may be the remedy. Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate. [United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990)]; see United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986); United States v. Melvin, 596 F.2d 492, 499 (1st Cir.), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979).
Recklessness may be inferred where the omitted information was "clearly critical" to the probable cause determination. Rivera v. United States, 928 F.2d 592, 604 (2nd Cir.1991) (citations omitted). United States v. Furlong, 844 F.Supp. 624, 628 (D. Mont., 1994).
The protection of the Fourth Amendment lies in requiring that this inquiry be made "by a neutral and detached magistrate instead of . . . by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Thus, the affidavit must inform the magistrate of all the essential facts with sufficient clarity to enable him to exercise his independent judgment. United States v. Anderson, 453 F.2d 174 (9th Cir. 1971). Half-truths and misrepresentations as well as conclusory allegations can reduce the function of a magistrate to that of a rubber stamp upon the law enforcement officer's personal determination of probable cause. Cf. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).
United States v. Esparza, 546 F.2d 841, 843-44 (9th Cir. 1976).
The effect of the misrepresentations and omissions on the existence of probable cause is considered cumulatively. United States v. Esparza, 546 F.2d 841, 844 (9th Cir.1976). In other Franks cases in which a failure to disclose an informant's felony conviction and investigate his credibility have been considered, there was "plenty of probable cause" even after the felony history was post-hoc inserted into the affidavit. See e.g. United States v. Barr, 32 F.3d 1320 (8th Cir. 1994), United States v.LaMorie, 100 F.3d 547, 553 (8th Cir. 1996). In this case, however, in contrast, the credibility of the informant's information was absolutely critical to the magistrate's determination. The credibility and reliability of a person who provides information to the police are important factors to be considered in a determination of probable cause. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).
IV. THE DOG'S 'INDICATION' WAS NOT RELIABLE EVIDENCE WHICH WOULD SUPPORT PROBABLE CAUSE
No probable cause existed to support the search of the baggage because: an "indication" of a scent detection canine alone does not constitute reliable evidence; and the reliability of the canine was not established through a sworn statement; and the circumstances which preceded the alert and undermined the reliability of the indication were not disclosed to the magistrate and may require a Franks hearing
In United States v. Place, 462 U.S. 696 (1983), the United States Supreme Court held that the exposure of luggage, in a public place, to a trained narcotics-sniffing dog did not constitute a search within the meaning of the Fourth Amendment because the use of the dog neither required the opening of the luggage nor exposed what had been hidden inside. Since Place, many other courts have followed its lead holding that a dog sniff is not a search. See, e.g., United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990), on remand, United States v. Ozuna-Fuentes, 773 F. Supp. 1495 (D.N.M. 1991), appeal after remand, 974 F.2d. 149 (10th Cir. 1992). Furthermore, courts routinely hold that a "positive" sniff (one where the dog reacts in a manner indicating that it detects the presence of narcotics or other drugs) standing alone, provides probable cause sufficient to support the issuance of a search warrant. See, e.g United States v. Fernandez, 772 F.2d 495, 498 n.2 (9th Cir. 1985).
Obviously, these courts have assumed that the dog's alert is evidence of the presence of drugs in the object to which the dog's nose is exposed. the dog has become an expert. However, if the dog is actually alerting to non-controlled substances or to a residue of the drug left on an object, or merely to the smell of the drug left after someone was near someone else who was consuming the drug, the dog's alert should not provide the basis for probable cause.
Numerous instances have been documented where a search after a canine "alert" has turned up no evidence of the presence of drugs. See e.g., Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979), aff'd in part, 631 F.2d 91 (7th Cir. 1980), reh'g denied, 635 F.2d 582 (7th Cir.) cert. denied, 451 U.S. 1022 (1981), where police dogs sniffed students as they sat in their classrooms. Plaintiff, a junior high school student, was subjected to a strip search as a result of a positive alert by one of the dogs. The search revealed no evidence of drugs. "[I]t was later discovered that plaintiff had been playing with one of her dogs the morning of the search and that dog was in heat." Id. In another case,
[i]t was suggested ... that the presence of such substances as tobacco, lighter fluid, and non-prescription drugs might have caused the dog to react the same as if he had detected marijuana or narcotics. The odor of a female dog in heat, a cat, or other animals might also cause a "sniffer dog" to become excited, the same reaction he was trained to exhibit in response to the smell of drugs.
Jones v. Latexo Inc. School Dist., 499 F. Supp. 223, 228 n.2 (E.D. Tex. 1980).
In United States v. Brown, 731 F.2d 1491, 743 F.2d 1505, reh.denied, 749 F.2d 733 (1lth Cir. 1984), a dog's alert to luggage at an airport led to a search of the bags, which were found to contain two revolvers, but no drugs. "the Supreme Court has assumed that dog-sniff tests are reliable. The result of the test in this case should perhaps give us pause before making that assumption." Id. at 1492 n.l.
More recently, evidence has begun to appear that positive sniff tests have been triggered by microscopic "trace" elements of a drug, of which the owner of an object is not aware and for which he is not responsible. Trace elements of drugs are readily transferrable from one item to another, and dogs sometimes alert to such minute traces. These trace elements have led to many successful forfeiture proceedings. For example, in United States v. One Gates Lear Jet, 861 F.2d 868 (5th Cir. 1988), law enforcement officers twice searched a small aircraft but found no evidence of narcotics. A dog then alerted to the aircraft's interior.
The aircraft was vacuumed with special equipment and the cleanings were tested. The chemist reported finding a trace of cocaine in the vacuumed dust. The quantity of the cocaine trace was three-to-four milligrams, or 10-to-14/100,000 of one ounce and was so small as to be unusable as a drug. The trace was not visible to the naked eye, alone or aided by a powerful microscope and was measurable only through sophisticated scientific procedures.
Id. at 476-77. "The chemist conceded that the quantity could have been brought on board the aircraft on the shoe of a passenger or crew member." Id. at 472. See also United States v. $14,500.00 in United States Currency, 767 F. Supp. 1123, 1127 (M.D. Fla. 1991) ("The Court agrees that money can become tainted from various sources and that the bag itself may have been tainted . . .").
Recent cases have noted that currency is contaminated to a remarkable degree by cocaine. In United States v. $87,375 in United States Currency, 727 F. Supp. 155, 160 (D.N.J.. 1989), an expert toxicologist testified that he used a chemical analysis to study the presence of cocaine residue on currency in several regions of the United States, concluding that all the bills contained cocaine residue and that cocaine can easily be transferred from one object to another based on its physical properties.
In United States v. $639,558 in United States Currency, 955 F.2d 712 (D.C. Cir. 1992), the police were looking for drugs when they found the money which became the subject of this civil forfeiture action. The police had opened the luggage after a positive alert by a drug-sniffing dog. The court noted that everyone agreed that the dog alerted to cocaine adhering to the cash in the luggage. The defendant's expert testified "that 90% of all cash in the United States contains sufficient quantities of cocaine to alert a trained dog." Id. at 714 n.2. The court added a word of caution: "If the information related above proves accurate, a court considering whether a dog sniff provides probable cause.... may have to take into account the possibility that the dog signaled only the presence of money, not drugs." Id. See also, In re Forfeiture of $18,OOO, 471 N.W.2d 628, 630 (Ct. App. Mich. 1991), where a dog alerted to cash submitted as bond money, but evidence indicated that claimant had withdrawn the money from the bank just before posting the bond; United States v. $80,760.00 in United States Currency, 781 F. Supp. 462, 475 at n. 32 (N.D. Tex. 1991), aff'd 978 F.2d 709 (5th Cir. 1992).
If a trained narcotics dog is such a sensitive detector that it can detect minuscule amounts of cocaine transferred from paper currency to another object, its detection cannot provide probable cause to believe that drugs are present on or in a given object. Its "alert" merely tells its handier that some contaminated object, money, a hand that touched money, etc. has since come in contact with the object under scrutiny. This level of sensitivity destroys the reliability necessary for probable cause to believe a crime has been committed by a particular individual or that a particular individual's property contains drugs. As more and more courts are presented with this evidence that the dog sniffs are unreliable, a new body of law is emerging. In Willie Jones v. DEA et al, 819 F. Supp. 698 (M.D. Tenn. 1993), the court held that "the continued reliance of courts and law enforcement officers on dog sniffs to separate 'legitimate' currency from 'drug connected' currency is logically indefensible." Id. at 720.
The DEA has been aware of the problems of reliability with drug detection canines for several years as a result of a study in a DEA laboratory, "to determine the extent of cocaine contamination on U.S. currency supplied by the Federal Reserve Banks." See Report On Trace Analysis of U.S. Currency (date unknown). According to this report, one third of the randomly-selected currency samples were found to be contaminated by traces of cocaine. In addition, an analysis of high-speed belts used to sort unfit bills from those eligible to be released for circulation at the Federal Reserve Bank found that the belts too were contaminated. The study concluded that "the results indicate that the Federal Reserve Bank itself may be contaminating the currency .... The belts must be initially contaminated by the currency, then in turn the belts will contaminate 'clean' currency." Id The study recommends "that trace analysis of currency for general enforcement or seizure be stopped," and "that DEA discourage the use of trace analysis of currency by presenting and publishing the results in the scientific literature." Id.
In addition, a letter written on February 15, 1989, by Robert Bianchi, Chief of the DEA Northeast Laboratory, makes it clear that the limitations of trace analysis and the growing contamination of United States currency were well known within the DEA even at that time. (attached) The letter was written to accompany the transmission of results of a trace analysis performed on U.S. currency. The letter states in part:
The identification of cocaine traces on currency is subject to some limitations. Specifically, currency from several banks has been examined and traces of cocaine have been identified....The information has been disseminated in DEA research reports, Micrograin, the Narcotics Control Digest, and the FBI Crime Laboratory Digest. It has also been disseminated in several newspapers and High Times. We are not able to establish how or what the traces of cocaine were deposited on the referenced exhibit. Any use of these analytical results should take this situation under consideration.
Id. See also, Willie Jones v. DEA, et al., 819 F. Supp. 698, 721 (M.D. Tenn. 1993).
Recently the Ninth Circuit was "troubled by [the defendant's] contention that evidence of a drug-sniffing dog's alert to cash ought not to be given weight in a court's probable cause determination .... because of the general contamination of America's paper money supply, the fact that a dog alerts to a particular batch of cash does not indicate that the money has been involved in drug trafficking or drug use. In recent years, courts have increasingly questioned the reliability of dog alerts for precisely this reason." United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1062 n.21 (9th Cir. 1994). The court did not reach the issue in that case but it noted the other cases on this issue and shared "the concerns expressed in [other] cases." Id.
In this case, the affidavit in support of a search warrant sworn by Inv. Tower reflected the following information.
The bag was presented to scene detection "Conan" at 11:50 p.m., and gave a positive indication for the presence of cocaine, heroin, methamphetamine, marijuana or any combination thereof. (See Attachment A of this Affidavit).
(Page 4) Attachment A was an unsworn statement by AST Sgt. Kenny - not an affiant -- that he had "personal knowledge" that the information provided was accurate. A reading of the form document, titled "Scene Detection Canine 'Conan'", however, reflected that the information provided as to Conan's history of "indications" (showing a 5% false-positive record) may have come from yet another unsworn source, Inv. Sheets, Conan's handler.
This court should find that the search warrant was invalid because the representations made as to the dog's reliability were not sworn. An additional ground for suppression exists, however, because the court did not have the opportunity to fully assess the reliability of the 'indication' in light of the totality of the circumstances. In United States v. Diaz, 25 F.3d 392, 394 (6th Cir. 1994), the Circuit Court noted that any evidence that "may detract from the reliability of the dog's performance properly goes to the 'credibility' of the dog.". The particularly troubling and undisclosed circumstance in this case was the police's hand-off of the bag (unboxed, unbagged, and secured only by tape) to unknown persons and to be placed among unknown objects prior to the dog's exposure.
DATED this ____ day of July, 2000.
Respectfully submitted,
FEDERAL PUBLIC DEFENDER
DISTRICT OF ALASKA
_______________________________
Mary C. Geddes
Assistant Federal Defender
CERTIFICATE OF SERVICE
The undersigned certifies that on February
______, 1998, a copy of the foregoing was
hand delivered to:
James N. Barkeley, Esq.
Assistant U.S. Attorney
United States Courthouse
222 W. 7th Ave. #9 Room 253
Anchorage, Alaska
____________________________________
Susan H. Abbott
1. Mr. Phillips was not arrested on April 30, 1997 for these tickets.
2. The elapsed time from the defendant's scheduled departure from San Diego and his arrival in
Anchorage was 9 hours and 20 minutes (9:20). The elapsed time from the defendant's departure from
Seattle and his arrival in Anchorage was three and one-half hours.
3. Another trooper or Agent Brown of the DEA may have also been with Inv. Tower at this time
4. Tower has testified that the time of seizure was 10:00 p.m.. but that does not square with the tape and his expectation that the baggage could be sent to Fairbanks on same Reno flight, which was scheduled to leave at 9:50 p.m.
5. Meanwhile, there was an Alaska Airlines flight which left Anchorage at 10:10 p.m. and arrived in Fairbanks at 11:00 p.m.